Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that no report has been received from the Government.

The Committee notes the observations on the application of the Convention sent on 31 August 2005 by the International Confederation of Free Trade Unions (ICFTU). The Committee requests the Government to comment on these observations in its next report.

In its previous comments, the Committee addressed the following matters:

Article 2 of the Convention. Trade union rights of minors. For several years, the Committee has been noting that section L.11 of the Labour Code (as amended in 1997) provides that minors over 16 years of age may join trade unions unless their membership is opposed by their father, mother or guardian. The Committee recalls that the Convention authorizes no distinction on such grounds (see General Survey on freedom of association and collective bargaining, 1994, paragraph 64), and requests the Government to amend its legislation so as to guarantee the right to organize of young persons who are legally entitled to work, either as workers or apprentices, without parental authorization being necessary. The Committee requests that the Government keep it informed on any measures taken to this end.

Articles 2, 5 and 6. Right of workers to establish organizations of their own choosing without prior authorization. The Committee has been pointing out for many years the need to repeal Act No. 76-28 of 6 April 1976, which confers discretionary authority on the Minister of the Interior for the issuing of certificates recognizing the existence of trade unions. The Committee has also pointed out several times that section L.8 of the Labour Code, as amended in 1997, reproduces the substance of the Act of 1976 by requiring previous authorization from the Minister of the Interior for the establishment of trade unions, federations and confederations.

Noting that section L.8(6) provides that, in the light of reports prepared by the Labour Inspector and the Attorney-General of the Republic and following an opinion from the  Minister of Labour, the Minister of the Interior decides whether or not to issue a certificate, in accordance with section 812 of the Code of Civil and Commercial Obligations, the Committee once again emphasizes the importance it attaches to compliance with Articles 2, 5 and 6 of the Convention, which give workers and their organizations the right to form organizations of their own choosing without prior authorization. The Committee again asks the Government to repeal at the earliest possible date the requirement for prior authorization set in section L.8 of the Labour Code, and to report on all steps taken to this end.

Article 3. Requisitioning of workers. The Committee has been noting for several years that section L.276 grants the administrative authorities broad powers to requisition workers in private enterprises and public services and establishments who occupy posts considered to be essential for the security of persons and property, the maintenance of public order, the continuity of public services or the satisfaction of the country’s essential needs. The Committee again asks the Government to provide the decree implementing section L.276 which contains a list of essential services, so that it may ensure that it is consistent with the provisions of the Convention. The Committee again points out that the requisitioning of workers as a means of settling labour disputes can result in abuses. Such action is therefore to be exclusively confined to the maintenance of essential services in the strict sense of the term (i.e., the interruption of which could endanger the life, safety or health of the whole or part of the population) or acute national crises or public servants exercising authority in the name of the State.

The Committee further points out that section L.276 in fine provides that workplaces or their immediate surroundings may not be occupied during a strike under penalty of the sanctions provided for in sections L.275 and L.279. The Committee has already indicated to the Government that restrictions on the occupation of workplaces should be limited to instances where strike actions cease to be peaceful (General Survey, op. cit., paragraph 174).

Article 4. Dissolution by administrative authority. For several years, the Committee has been pointing out the need to amend the national legislation in order to protect trade union organizations against dissolution by administrative authority (Act No. 65-40 of 22 May 1965), as required by Article 4 of the Convention. The Committee noted that section L.287 of the Labour Code does not expressly repeal the 1965 provisions on administrative dissolution.

The Committee once again suggests to the Government that it would be preferable to include in a law or regulations a provision expressly stating that the measures on administrative dissolution contained in Act No. 65-40 on associations do not apply to trade union organizations.

The Committee again expresses the firm hope that the necessary steps will be taken to ensure that full effect is given to the provisions of the Convention, and requests the Government to provide information in its next report on any measures taken to this end.

The Committee observes that the Government has not made the comments requested on the observations sent by the ICFTU in its communication of 23 September 2003, reporting police intervention in demonstrations by workers. The Committee asks the Government to instruct the police to refrain from intervening in peaceful demonstrations by workers.